Thompson v. Commissioners for Loaning Certain Moneys of the United States , 23 N.Y. Sup. Ct. 86 ( 1878 )

LEARNED, P. J.:

Assuming, as was held by the learned justice who tried this case, that the attempted sale by tbe commissioners was void on account of the defects in the advertisement and in the service, the situation of the mortgagors then is that they have failed, for more than twenty-three days, to pay the interest on the mortgage. According to the express language of the statute, therefore, they are utterly barred of all equity of redemption, “any law, usage, custom or practice in courts of equity to the contrary notwithstanding.” (Laws of 1837, chap. 150, § 30.)

This is equivalent to a foreclosure of the mortgagor’s right. (Pell v. Ulmar, 18 N. Y., 139; White v. Lester, 1 Keyes, 316.) Nothing remains to the mortgagors but the statutory privilege of redemption given by section 33 of the act above cited. By that section it is provided that if the mortgagor, at or before the sale of the premises (and we assume, for the present, that there was here no sale — that is, no valid sale), shall pay to the commissioners all such sums of money as shall be due and payable on such mortgage on the first Tuesday of October then next, for principal and interest, and costs and charges of foreclosure, together with the charges for advertising, then the title in fee to the premises shall revert to and reinvest in the mortgagor.

This the mortgagors have not done. All that the mortgagors have done is this. The plaintiff delivered to the commissioners a notice, stating that she offered to pay the amount due for principal and interest on the mortgage and to redeem the premises, and that she desired an accounting for the rents and profits, and the amount, when ascertained, paid to her or applied on the mortgage. She made no tender or offer of tender; nor did she, at the time of serving the notice, have the money specified therein to pay to them, and she has not since had it.

Now, clearly she has not complied with the terms of the privilege given by the statute. It would be absurd to say that this delivery of a written notice had the effect of making the title revert to and revest in the mortgagors. It was her duty to pay to the commissioners the amount due and payable on said mortgage for principal and interest on the first Tuesday of October then next; a day nearly a year after the time when she served the notice. If they should not accept the moneys (as the statute requires them to do), certainly she was bound at the least to make a tender.

Furthermore, there is nothing in the statute right of redemption which authorizes the mortgagor to ask for an accomiting of the rents and profits, as the plaintiff did in this case. It is true that, in the case of ordinary mortgages, a mortgagor may bring an action to redeem, and the matter of a previous tender of the money is generally important only on the question of costs. But the present is not the case of an ordinary mortgage. The ordinary right of redemption, that creation of the courts of equity, is expressly taken away by the statute, and the mortgagor is left to the rights given by the statute and to those alone. The case of Sherwood v. Read (7 Hill, 431) is not in conflict with this view. That action was brought to restrain the giving of a conveyance by the commissioners under a sale alleged to be illegal. The Court of Errors held that the sale was illegal, and reversed the decree of the chancellor who had dismissed the bill. The sale being illegal, the giving of a conveyance under it should be restrained, and the case decides that the commissioners could not lawfully sell on credit.

Again, if this sale is void, as the plaintiff claims, then it is just as if no sale had taken place. The plaintiff has no greater rights against the commissioners than she would have had if they had as yet made no sale. In that case her rights Avould have been to pay the money, and thus redeem: not to bring an action for redemption on a mere offer to pay, unaccompanied even by a tender. Other questions are presented by the defendants, which, in the view above taken, it is uimecessary to consider. We do not, therefore, decide whether or not the sale was valid, or whether the plaintiff has such an interest in the property that she could alone maintain the action.

For the reasons above given, we think the judgment should be reversed and a new trial granted, costs to abide the event.

Present — Learned, P. J., Boardman and Bookes, JJ.

Judgment reversed and new trial granted, costs to abide event.